Federalism and Subsidiarity

NOMOS LV

James E. Fleming

Publication Year: 2014

In Federalism and Subsidiarity, a distinguished interdisciplinary group of scholars in political science, law, and philosophy address the application and interaction of the concept of federalism within law and government. What are the best justifications for and conceptions of federalism? What are the most useful criteria for deciding what powers should be allocated to national governments and what powers reserved to state or provincial governments? What are the implications of the principle of subsidiarity for such questions? What should be the constitutional standing of cities in federations? Do we need to “remap” federalism to reckon with the emergence of translocal and transnational organizations with porous boundaries that are not reflected in traditional jurisdictional conceptions? Examining these questions and more, this latest installation in the NOMOS series sheds new light on the allocation of power within federations.

Cover

Title Page, Copyright

Contents

Preface

This volume of NOMOS—the fifty-fifth in the series—emerged
from papers and commentaries given at the annual meeting of
the American Society for Political and Legal Philosophy (ASPLP)
in Seattle on September 3–4, 2011, held in conjunction...

Contributors

PART I. FEDERALISM, POSITIVE BENEFITS, AND NEGATIVE LIBERTIES

1. Defending Dual Federalism: A Self-Defeating Act

Dual federalism is a doctrine of American constitutional law. Defending
dual federalism is a self-defeating act because of what
dual federalism is and what it means to defend it. Dual federalism
is states’ rights federalism. It holds that when national...

2. Defending Dual Federalism: A Bad Idea, but Not Self-Defeating

There are many ways to call a position mistaken. The most common
is to say that the position shouldn’t be held: the reasons given
for that position are inadequate, perhaps, or the consequences
of that position are bad. It’s more powerful to say that...

3. The Puzzling Persistence of Dual Federalism

It may seem strange that, more than sixty years after Edward Corwin
famously lamented “The Passing of Dual Federalism,”1 this
essay is part of a panel organized under the title “Against Dual
Federalism.” Accusations that the Court was trying...

4. Foot Voting, Federalism, and Political Freedom

The idea of “voting with your feet” has been an important element
in debates over federalism for several decades.1 Economists, legal
scholars, and others have analyzed its efficiency and equity. But
foot voting is still underrated as a tool for enhancing political...

PART II. CONSTITUTIONS, FEDERALISM, AND SUBSIDIARITY

5. Federalism and Subsidiarity: Perspectives from U.S. Constitutional Law

We live in an Age of Federalism.1 Of the G-20 countries with the
most important economies in the world, at least twelve have federal
constitutional structures and several others are experimenting
with federalism and the devolution of power. The first group...

6. Subsidiarity, the Judicial Role, and the Warren Court’s Contribution to the Revival of State Government

Professor Steven Calabresi and Lucy Bickford have suggested that
the concept of subsidiarity, an explicit aspect of the quasi-federal
system in the European Union, is already inherent in the U.S.
constitutional system; that it serves several distinct goals...

7. Competing Conceptions of Subsidiarity

A principle of subsidiarity has gained prominence in law and
politics as well as in legal and political theory, on topics ranging
from U.S. constitutional interpretation and European integration
to the constitutionalization of international law. Its...

8. Subsidiarity and Robustness: Building the Adaptive Efficiency of Federal Systems

Subsidiarity—a systemic predilection for locating authority at the
most local level feasible—has long been admired for its ability to
protect localized, diverse interests from the tyranny of a national
majority. In this chapter, I suggest a novel benefit of...

PART III. THE ENTRENCHMENT OF LOCAL AND PROVINCIAL AUTONOMY, INTEGRITY, AND PARTICIPATION

9. Cities and Federalism

In most countries, cities are constitutional nonentities.1 That is,
they exist at the pleasure of political entities that do have constitutional
standing, be they substate entities like provinces, länder, or
U.S. states, or sovereign states. Their boundaries can be redrawn...

10. Cities, Subsidiarity, and Federalism

My aim here is to use the city as an analytic category, a lens through
which to examine the principle of subsidiarity and the justification
of federalism. I will argue that two powerful justifications for subsidiarity
seem as if they should be mutually supporting...

11. The Constitutional Entrenchment of Federalism

One of the most striking developments in the past ten years of constitutional
theory has been the partial or wholesale critique of judicial
review among those traditionally identifi ed as “legal liberals”
or “liberal legalists.” In its moderate versions, this critique...

PART IV. REMAPPING FEDERALISM(S)

My interest is in the sources of identity and norms in federations
and the methods for mediating conflicts. In contrast to many
accounts of federalism, which assume the stability of the political
units that constitute a federation and which posit that subject...

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